STATE EX REL. ROWSEY v. MORGAN, 97-1708 (Wis.Ct.App. 8-4-1998)

STATE OF WISCONSIN EX REL. RODNEY ROWSEY, PETITIONER-APPELLANT, v. KENNETH MORGAN, WARDEN, RACINE CORRECTIONAL INSTITUTION, RESPONDENT-RESPONDENT.

Court of Appeals of Wisconsin.
Case No. 97-1708.
Opinion Released: August 4, 1998. Opinion Filed: August 4, 1998. This opinion will not be published. See Rule 809.23(1)(b)5, Stats.

APPEAL from orders of the circuit court for Milwaukee County: WILLIAM J. HAESE, Judge. Affirmed.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

PER CURIAM.

[1] Rodney Rowsey appeals from an order denying his petition for a writ of habeas corpus. He also appeals from an order denying his motion for reconsideration. He argues that his habeas corpus petition and reconsideration motion sufficiently alleged that he received ineffective assistance of counsel at a parole revocation proceeding, and that the trial court, therefore, erred in denying the petition and motion without holding an evidentiary hearing. We affirm.

I. BACKGROUND
[2] On March 3, 1994, Rowsey was convicted of burglary, battery, criminal damage to property, and violating a restraining order. Rowsey was released on parole on October 31, 1995. On June 30, 1996, Rowsey’s parole was revoked based upon allegations that, on June 11, 1996, he had tested positive for cocaine use; that, on June 15, 1996, he had hit and kicked Martha Nathaniel; and that, on June 15, 1996, he had violated a restraining order that was filed against him by Nathaniel. Although no transcript of the revocation proceeding has been provided on appeal, the administrative law judge’s findings of fact and conclusions of law indicate that: (1) the allegations concerning Rowsey’s cocaine use were substantiated by a urinalysis and Rowsey’s admissions to Agent Mary Olson; (2) the remaining allegations were substantiated by testimony from Nathaniel; and (3) although Rowsey testified, his testimony was internally inconsistent and directly contradicted by the testimony from Olson and Nathaniel. The substance of Rowsey’s testimony, however, is not in the record.

[3] On April 18, 1997, Rowsey filed a petition for a writ of habeas corpus, alleging that his counsel at the revocation hearing was ineffective. Specifically, Rowsey alleged:

a. Counsel did not meet with the petitioner or talk to him at any time prior to the morning of the hearing. As a result, alibi witnesses that could have given testimony exonerating petitioner of the most serious allegation underlying the revocation, the battery of Martha Nathaniel, could not be subpoenaed for the hearing, causing prejudice to the petitioner at the hearing.
b. Counsel had difficulty staying awake during her meeting with petitioner prior to the hearing.

. . . .

f. Counsel did not understand the standards governing parole revocation, which is evident from the copy of the transcript of the parole revocation hearing, attached and labelled [sic] Exhibit B.[1]

[4] On April 23, 1997, the trial court denied Rowsey’s petition for habeas corpus. On April 30, 1997, Rowsey filed a motion for reconsideration. In the motion, Rowsey argued, among other things, that “[b]ecause of petitioner’s counsel’s gross misunderstanding of the law, she did not subpoena alibi witnesses, who would have testified that, at the time of the alleged battery against Martha Nathaniel, Petitioner was at home with his parents.” On May 5, 1997, the trial court denied Rowsey’s motion for reconsideration.

II. DISCUSSION
[5] Rowsey argues that the trial court erred in denying his habeas corpus petition and reconsideration motion without a hearing. He argues that his allegations were sufficient to raise an issue of fact as to whether his counsel was ineffective at the parole revocation hearing.[2]

[6] If a defendant files a postconviction motion and alleges facts that, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. See State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50, 53 (1996). Whether the motion alleges sufficient facts that, if true, would entitle the defendant to relief is a question of law, which we review de novo. Id.

However, if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.

[7] Id., 201 Wis.2d at 309-310, 548 N.W.2d at 53 (citations omitted). We will reverse the trial court’s discretionary decision to deny an evidentiary hearing only for an erroneous exercise of discretion. See id., 201 Wis.2d at 311, 548 N.W.2d at 53. [8] To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to establish both that counsel’s performance was deficient and that the deficient performance produced prejudice. State v. Sanchez, 201 Wis.2d 219, 232-236, 548 N.W.2d 69, 74-76 (1996). To show prejudice, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”Strickland v. Washington, 466 U.S. 668, 694 (1984). [9] As noted, Rowsey alleged that his trial counsel was deficient in failing to subpoena alibi witnesses who would have testified that he was at home with his parents at the time that he was alleged to have battered Nathaniel. In his petition for habeas corpus, Rowsey alleged that he was prejudiced by this claimed deficiency; however, he failed to allege how he was prejudiced. In his motion for reconsideration, Rowsey stated: “The issue of prejudice cannot be resolved by this brief, but would properly be addressed at a hearing on the issue. That prejudice resulted from failure to call alibi witnesses, however, would seem to be self-evident.” Rowsey also alleged in his petition that his trial counsel was deficient because she had trouble staying awake during their meeting prior to the revocation proceeding, and because she did not understand the standards governing the proceeding. He made no allegation of prejudice with respect to these claims. [10] These allegations are insufficient to warrant an evidentiary hearing. With respect to Rowsey’s claim that his counsel had trouble staying awake during their meeting and his claim that she did not understand the applicable standards, Rowsey failed to explain how these alleged facts affected counsel’s performance at the revocation proceeding, and thus failed to sufficiently allege either deficient performance or prejudice based upon these assertions.[3] With respect to Rowsey’s alibi-witness claim, Rowsey failed to specifically identify the alibi witnesses whom he claims that his trial counsel should have subpoenaed; as phrased, Rowsey’s assertion may or may not refer to his parents, and he makes no offer of proof either as to the precise nature of what his “alibi witnesses” would have said, or the personal-knowledge foundation for their testimony, see Rule 906.02, Stats.[4] Rowsey’s assertions supporting his claim of prejudice are thus conclusory. See State v. Washington, 176 Wis.2d 205, 216, 500 N.W.2d 331, 336 (Ct.App. 1993) (a postconviction motion “must contain at least enough facts to lead the trial court to conclude that an evidentiary hearing is necessary”).[5] [11] By the Court. — Orders affirmed.